Citation Nr: 1521586
Decision Date: 05/20/15 Archive Date: 05/26/15
DOCKET NO. 13-12 451 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma
THE ISSUE
Entitlement to service connection for sleep apnea, to include as secondary to service-connected hypothyroidism.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
A. Hodzic, Associate Counsel
INTRODUCTION
The Veteran, who is the appellant in this case, had active military service from January 1996 to June 2002.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied the claim of entitlement to service connection for sleep apnea. The Veteran appealed the denial of this claim in this decision, and the matter is now before the Board.
The Veteran was scheduled to testify via videoconference from the RO in Muskogee in September 2014. In a July 2014 statement, the Veteran, through his representative, withdrew his request for a Board hearing. Thus, the Board hearing request is deemed withdrawn. 38 C.F.R. § 20.702(e) (2014).
The Board notes that a May 2003 rating decision issued by the RO in Roanoke, Virginia, denied service connection for "breathing problems with continual snoring," which could be interpreted as part of a claim for sleep apnea. However, the Board concludes that the previously denied claim is sufficiently differentiated from the present claim to service connection for sleep apnea because the Veteran did not have a diagnosis of sleep apnea at that time. Velez v. Shinseki, 23 Vet. App. 199, 205 (2009) (discussing the distinction between a new claim and evidence tending to substantiate an element of a previously adjudicated matter); see also Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996). He submitted a sleep apnea disability benefits questionnaire (DBQ) in October 2011, which the Muskogee RO reasonably interpreted as a new claim for service connection. Thus, discussion of the new and material evidence standard for service connection for sleep apnea is not required as this is a new claim.
FINDING OF FACT
Sleep apnea was not incurred in military service, is not etiologically related to military service or service-connected hypothyroidism, and is not aggravated by service-connected hypothyroidism.
CONCLUSION OF LAW
The criteria for service connection for sleep apnea, to include as secondary to service-connected hypothyroidism, have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2014).
REASONS AND BASES FOR FINDING AND CONCLUSION
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).
Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).
In determining whether service connection is warranted for a disorder, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2014). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).
The Veteran contends that sleep apnea is related to his active military service. Initially, the Board notes that the Veteran is service-connected for several disabilities, including hypothyroidism. Moreover, the Board notes that his current diagnosis of sleep apnea is not in question. He was diagnosed with sleep apnea in August 2011 after a private sleep study was conducted. Therefore, the remaining questions are whether sleep apnea occurred in service and whether there is a nexus between the current disorder and the in-service occurrence.
An August 1995 service pre-induction examination did not show any abnormalities related to sleep or respiratory functions. In his report of medical history from the same date, the Veteran indicated that he did not have frequent trouble sleeping. A December 2000 report of medical examination did not indicate the presence of sleep apnea or trouble sleeping. In his report of medical history from the same date, the Veteran indicated that he did not have frequent trouble sleeping or easy fatigability, although he noted that he had several other disorders and symptoms on this form that are unrelated to any sleep disorder. An October 2001 periodic examination did not show any abnormal sleep symptoms; however, the Veteran was noted as having hypertension, hypothyroidism, and chronic right knee pain. In his report of medical history from this date, the Veteran again reported that he did not have frequent trouble sleeping, although he indicated that he had several other disorders and symptoms.
In addition to these service treatment records, the record does not contain evidence of treatment for or complaints of any sleep-related problems during service. In fact, the Veteran was diagnosed with sleep apnea many years after service. Moreover, the Veteran has not alleged that his sleep apnea is directly related to his military service. Thus, the Board concludes that the Veteran's sleep apnea was not incurred during military service, and a nexus between his current sleep apnea and service is not possible on a direct basis. Furthermore, the Board acknowledges that the record contains several private medical records approximately five years or later after service which diagnose the Veteran's sleep apnea and show his current treatment for this disorder. However, these records do not discuss the etiology of his current sleep apnea and they do not provide any nexus opinions.
Nonetheless, the Veteran asserted in his October 2012 notice of disagreement that his sleep apnea should be service-connected as secondary to his service-connected hypothyroidism. In connection with this assertion, the Veteran submitted an article from the Internet purporting to show a link between sleep apnea and hypothyroidism. The Board notes that this article discusses information regarding these two medical disorders in general terms, and it does not mention or discuss the Veteran's particular symptoms, disorder, or circumstances. Nevertheless, the claims file does include evidence specifically addressing the relationship between the Veteran's current sleep apnea and his service-connected hypothyroidism in the form of a January 2013 VA examination. During this examination, the examiner reviewed the Veteran's claims file, available records, and medical databases and resources.
Following the review of these documents, as well as the Veteran's contentions, the VA examiner opined that it was less likely than not (less than 50 percent probability) that the Veteran's current sleep apnea was proximately due to or the result of the Veteran's hypothyroidism. In support of her opinion, the VA examiner reasoned that the Veteran was diagnosed with hypothyroidism in 1997 while in service and was started on thyroid replacement. He was diagnosed with sleep apnea in 2007 when his hypothyroidism was under control, as evidenced by records in the claims file, including a referral from his private doctor to a bariatric surgeon.
The VA examiner further explained that medical literature showed an association of hypothyroidism and sleep apnea, but the literature also showed that sleep apnea caused by hypothyroidism was resolved when the thyroid problem was treated. Furthermore, medical literature also showed that hypothyroidism leads to sleep apnea by causing macroglossia, which the Veteran does not have. She reasoned that the Veteran is morbidly obese, with a body-mass index greater than 47, which is the cause of his sleep apnea. She noted that although hypothyroidism did lead to modest weight gain, it did not lead to morbid obesity, as in the Veteran's case. As additional support for her conclusions, the VA examiner attached pertinent medical literature regarding hypothyroidism and sleep apnea.
Since this VA examination, the Veteran's representative submitted an informal hearing presentation in January 2015 mirroring the Veteran's contention that his sleep apnea was secondary to service-connected hypothyroidism. While the Board acknowledges the Veteran's contentions, and those of his representative, the Board concludes that the medical evidence of record is of greater probative value in determining whether the Veteran's sleep apnea was caused or aggravated by his service-connected disabilities. In this case, the January 2013 VA examiner's opinions are competent and they are the most probative evidence on the issue of etiology for sleep apnea as secondary to his service-connected hypothyroidism disability because of the VA examiner's expertise, training, education, proper support and rationale, and thorough reviews of the Veteran's records. Thus, the Board finds that the Veteran's current sleep apnea is not proximately due to or the result of the Veteran's service-connected hypothyroidism.
The Board acknowledges that the January 2013 VA examiner did not specifically address the issue of aggravation; however, when read in its entirety, the VA examiner's report shows that her medical opinion was that the Veteran's service-connected hypothyroidism did not aggravate his sleep apnea disorder. In reaching her opinion regarding whether hypothyroidism caused the Veteran's sleep apnea, the VA examiner explained that this can occur if the Veteran had hypothyroidism that was not properly controlled or if the hypothyroidism caused macroglossia. Neither scenario applies to the Veteran because the evidence indicates that his hypothyroidism is under control and there is no evidence that he has developed macroglossia. From a reasonable reading of the VA examiner's opinions, it appears that she concluded that the Veteran's morbid obesity was the sole cause of his sleep apnea. Thus, the Board finds that the Veteran's current sleep apnea is not aggravated by his service-connected hypothyroidism.
Therefore, as the preponderance of the evidence is against service connection for sleep apnea, to include as secondary to service-connected hypothyroidism, the benefit of the doubt doctrine does not apply, and the Veteran's claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.
Duties to Notify and Assist
VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). A notice letter was sent to the Veteran in December 2011, prior to the initial adjudication of the claim on appeal. Another letter was to the Veteran in November 2012 informing him of the requirements of secondary service connection. Moreover, notices sent to the Veteran included descriptions of what information and evidence must be submitted to substantiate the claim, including a description of what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of the claim to the RO. The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).
VA also has a duty to assist a veteran in the development of the claim. To that end, VA must make reasonable efforts to assist a veteran in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see Golz v. Shinseki, 590 F.3d 1317, 1320-21 (2010) (stating that the "duty to assist is not boundless in its scope" and "not all medical records . . . must be sought - only those that are relevant to the veteran's claim"). The Board finds that VA has satisfied its duty to assist by acquiring service treatment records, Social Security Administration (SSA) records, and records of VA and private treatment.
The duty to assist was further satisfied by a VA examination in January 2013, during which an examiner was provided the claims file for review, analyzed the Veteran's history, laid factual foundations for the conclusions reached, and reached conclusions and offered opinions based on the Veteran's history and medical literature that are consistent with the record. Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examinations has been met. 38 C.F.R. § 3.159(c)(4); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of their opinion).
Based on the foregoing, VA has fully met its duties to notify and assist the claimant with the development of the claim and no further notice or assistance is required.
ORDER
Entitlement to service connection for sleep apnea, to include as secondary to service-connected hypothyroidism, is denied.
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M. TENNER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs